93 Iowa 258 | Iowa | 1895
In December, 1875, the defendant A. F. Tyrrell was the owner of lots 1, 2,15, and 16 in block 8 in the village of Ei'ceviile, in Mitchell county, except a part of lot 2 bounded by lines described as follows: “Commencing at the northwest corner of that lot, thence extending east twenty-four feet, thence south fifty feet, thence west twenty-four feet, thence north fifty feet, to the place of beginning.” On the twenty-eighth day of the month named, Tyrrell and his wife executed to the defendant McCook an instrument in writing which purported to be a warranty deed conveying the premises described to him, subject to a mortgage thereon for the sum of one thousand dollars, which he agreed to pay. The instrument was delivered and
I. The appellant denies that the instrument in question was designed to secure the payment of money, and insists that the evidence does not show that such was the case. It is true he testifies that he purchased the premises without condition, and that the deed was intended to- be absolute. But he is contradicted by numerous witnesses and by numerous facts which have been established. When the instrument was made, Tyrrell was embarrassed financially. No money was paid. No> computation was made of the amounts which Tyrrell was owing to several creditors, whose claims, it is admitted by McCook, he was to pay as part, at le'ast, of the consideration of the conveyance. Tyrrell continued in actual possession of the property for some time, and held possession of a part of it for several years. During that time he made some repairs, and paid .some taxes, but no. rent. Statements of the amounts McCook had paid and received were prepared by him and by Tyrrell, about the year 1880, which varied but little in amount. McCook .stated to different persons, at different times, that he held' the jmoperty as security only, and that, whenever the amount due him was paid, he would convey it to Tyrrell. We cannot set out ¡all the evidence on this branch of the case. It is sufficient to say that it shows- quite satisfactorily that the instrument was designed to be a mortgage when it was executed, and McCook does' not appear to have mJade any claim to the contrary until the value of the property conveyed had been greatly enhanced by the building of a railway to. Riceville.
II. It is admitted to be the law of this state that, when the debt of a principal is paid by his surety, the latter will, in equity, succeed to the rights of the creditor against the principal, by subrogation. But it is
The important question to be determined is whether Tyrrell has an interest in the premises in controversy which may be subjected to the payment of the judgments, and, if he has, McOook can only demand that his own rights, be protected, and is not concerned in the amount of the claim which the plaintiff can enforce against Tyrrell. That is a: matter personal to themselves. The amount which plaintiff paid to
III. The judgments were rendered more, than ten years before they were transferred to the plaintiff, and
IV. The instrument in question contains a covenant to the effect that McCook agrees to' pay a mortgage
V. It is said the answer filed by Tyrrell in the Large foreclosure case estops him and thei plaintiff to
VI. The appellant contends that, as the District Court found that there was due McCook from Tyrrell the sum of five hundred and twenty-four dollars and forty-four cents, it .should have dismissed the petition, on the ground that, until the indebtedness was fully
The appellant also complains of the action of the court in establishing the judgments as liens upon the premises.* Whether they became “liens,” within the ordinary meaning of that term, by subjecting the interest of Tyrrell to their payment, so that it could not have been seized or alienated before the levy of execution otherwise than- subject to the judgments, we do not find it necessary to determine, for the reason that in no aspect of the case can’ the appellant he prejudiced by what was decreed. His rights were recognized to be paramount to those awarded to the plaintiff.
VII. The remaining question to be determined is the amount for which McCook is entitled to. hold the premises as security. McCook asks to be allowed for seven hundred dollars, in notes and accounts he claims to have transferred to Tyrrell, and for eight hundred dollars he claims to have paid to purchase for Tyrrell an interest in a mercantile business. We do not think the evidence justifies an allowance for these sums, nor for some others for which claim is made. Nor do we find any sufficient reason for allowing interest at a greater rate than six per cent, on sums due.